Summary
This work deals with the institution of civil liability derived from environmental damage with particular emphasis on the legal-doctrinal issues associated with the subject in our legal system. It constitutes the first approach to this line of research and is motivated by the need to carry out an in-depth study of this complex legal figure, which has recently been implemented in our country with a view to verifying whether the current regulation is adequate to its requirements..
The compensation of civil liability for damage to the environment.
The problem of adequate jurisdiction and other procedural reflections on civil liability for damage to the environment.
The profound 'administrativization of Civil Law' as a legal phenomenon is not the main problem that operates in our country around the appropriate jurisdiction to deal with cases of liability for environmental damage, but rather the dichotomy between Economic Law and Civil Law, given the scope procedural of one or another branch.
In capitalist countries, environmental conflicts that arise are aired, regardless of the person or activity that they carry out, in civil Courts, in addition to what may correspond to arbitration courts by arbitration clause in contractual matters and without prejudice to the fact that the fact is constitutive of a criminal offense; The socialist system requires, for its part, Economic Law to regulate the relationships that occur between various identified subjects in pursuit of the realization and direction of economic activity.
Law No. 81/97 states in the First Special Provision that the resolution of conflicts arising in the application of its precepts corresponds to the Economic Chambers of the People's Courts, but clarifies that “(…) without prejudice to the fact that they are resolved in their own jurisdictions the civil, criminal, contentious-administrative and administrative-offending matters… ”that are dealt with in said Law.
As prescribed by Articles 1 and 2 of Law No. 7 of August 19, 1977 “Law of Civil, Administrative and Labor Procedure” (LPCAL), civil jurisdiction is exercised by the People's Municipal Courts and the Civil and Civil Chambers. Administrative of the People's Provincial Courts and the People's Supreme Court, and to these it corresponds to know of the civil matters that arise between natural or legal persons provided that at least one of them is Cuban or between foreign natural or legal persons with representation or domicile in Cuba While the dispute does not deal with assets located outside the national territory, as well as matters subject to contract or by treaties to the jurisdiction of the Cuban Courts.
So far we have a broad framework of action, but the State Arbitration Bodies first and the Economic Chambers of the People's Courts later and currently, have subtracted issues from civil jurisdiction.
In this sense, Decree-Law No. 223 of August 15, 2001, “Of the jurisdiction and competence of the Economic Chambers of the People's Courts”, states in Article 1, second section, that it will correspond to the Economic Chambers of the Provincial People's Courts “the lawsuits that are brought against the natural or legal persons described in the first section due to non-compliance with the regulations on the protection of the environment and the rational use of natural resources, in the development of their productive, commercial or service activities, whether they are promoted by any of them or by the Attorney General's Office or the Ministry of Science, Technology and Environment, in accordance with current legislation. "
We have to infer that these violated 'regulations' give rise to extra-contractual liability, because as we have said, environmental damage caused by contractual breach is required by extension in the claim of the injured party, assuming that, then, it is included in the first section of the aforementioned article, according to which the Economic Chambers of the Provincial People's Courts are responsible for “the demands that are promoted due to the breach, nullity, termination or resolution of economic contracts…” where the subjects described are party.
Now, what happens to the damages caused by the subjects of Economic Law that are not derived from specific 'regulations'? These are included, in our opinion, within the sixth section of the same article, which provides knowledge of "the claims that are brought against the natural or legal persons described above, due to the damages caused by them to third parties in the development of their productive, commercial or service activities ”to the Economic Chambers of the Provincial People's Courts, in frank expansion of extra-contractual liability.
From all that has been stated so far, we have that environmental litigation promoted by or against the persons described in the first section of article 1 of Decree-Law No. 223/2001, will be resolved by the economic jurisdiction whenever they derive from the development of their activities productive, commercial or services, or economic contracting; What is not included within this sphere will be governed by the common civil provisions sanctioned by the Civil, Administrative and Labor Procedure Law.
Here it should be noted that of the five interviews conducted with experts, three argue that the correct jurisdiction should be the economic one because, in a general sense, environmental conflicts directly or indirectly affect the economic stability of the country, while the other two believe that the jurisdiction is going to be determined not only by the nature of the process and in this sense each case should be assessed, considering one of them that either (between civil and economic) is operative because they finally converge, and the other, that in good Technical jurisdiction should be the correct civil and administrative jurisdiction, although by law the economic one prevails.
Having made these necessary considerations, let us now list the subjects of Economic Law that Decree-Law 223/2001 systematized in its Article 1, first section:
a) Bodies, agencies, superior business management organizations, companies and other state entities.
All forms of state business organization seem to converge here, but a doubt assails us due to the emptiness of the norm: conflicts that arise due to the breach of economic contracts in a general sense (or to be more specific to our purposes, that affect to the environment) between the different dependencies of a Union of Companies, it is resolved by this new route or it will continue to be resolved by the Board of Directors of the Union, as stated in the third paragraph of Article 5 of Decree-Law No. 129 of 19 August 1991?
We consider that this last legal provision is not opposed to the aforementioned paragraph and has not been expressly repealed either, so it remains in force.
b) Commercial and civil service companies and other private entities.
c) Financial institutions authorized to operate in the national territory.
d) Social and mass organizations, as well as entities that are subordinate to them and to political organizations.
Interesting is the exclusion of political organizations themselves as subjects of Economic Law, but they have legal personality according to Article 39 c) of the Civil Code. Does this mean that the lawsuits that are established against them as allegedly responsible for the damage to the environment in their actions will then be governed by ordinary civil jurisdiction? It does not seem correct, but nothing leads us to think otherwise.
e) Associations and foundations.
f) Joint ventures and persons, both natural and foreign, authorized to operate in the national territory.
g) Agricultural production cooperatives (CPA), credit and service cooperatives (CCS), basic cooperative production units (UBPC), or any other type authorized by law.
h) Small farmers and other owners of land authorized to carry out productive or commercial activities in their relations with the subjects to which the previous paragraphs are contracted.
i) Other natural or legal persons who are expressly authorized by law.
In this regard, there is a doctrinal discrepancy around the figure of the self-employed that has emerged in our country. Although these natural persons offer their services to other persons, both natural and legal, to satisfy their individual needs and represent a tiny portion within the national economy, it is no less true that they pay tribute to it.
The problem is in determining whether their contracts with legal persons are economic. On the one hand, Resolution No. 1/2000 of the Central Bank of Cuba recognizes the legitimate form of payment to the self-employed when they provide a service to a state entity, something that was prohibited to the latter, but on the other there is no provision express legal status that gives them the status of subjects of Economic Law in this type of relationship. Therefore, we must consider this form of typically civil contracting and the self-employed as ordinary natural persons.
One of the peculiarities that has characterized Economic Law in Cuba is the scarce procedural independence that it suffers, having very few autonomous procedures and using, as appropriate, the provisions of the LPCAL. In the case of environmental damage there is also no special procedure, so you must adhere to the rules of civil procedure.
100% of the interviewed experts coincide in stating that the common civil adjective norms satisfy the requirements to establish a process on the matter, although one of them thinks that the terms provided for the procedural acts should be shortened in these cases. Based on this last idea, which of the two types of applicable processes (ordinary or summary) would be appropriate? The ordinary process is usually very guarantor and demonstrative, but the summary beats it in speed, an issue that contributes to the repair of the peculiar environmental damages by virtue of its social significance.
Perhaps a new procedural formula should be implemented that brings together the values of both types of processes, or as Rey Santos thinks, that the modalities of the protection in our Law of Procedures are also exploited in order to the agility that these achieve.
It should also be noted that when assessing which Court corresponds to the repair of environmental damage in the event of being ventilated through civil channels, this cannot be the People's Municipal Court in any case, except that the compensation is verified from the first moment in monetary terms. We consider that the competent Court par excellence must be the Provincial, according to Article 6, pleca 6) of the LPCAL, since the economic evaluation is precisely one of the objectives to be achieved in the process and this is not, therefore, included in a specific provision.
Another reflection is achieved in the analysis of Article 72 of Law No. 81/97, where it is stated that “to ensure the results of a process or to prevent further damage from being caused, the measures that go beyond current procedural legislation ”. It must be understood that precautionary measures are also traditional to common civil avenues, so they do not respond to the needs of environmental responsibility. Some changes that provide more adequate solutions should be valued, due to the emphasis wisely given by the aforementioned Law.
Finally, the possibility offered by Article 45 of the Civil, Administrative and Labor Procedure Law, which grants the Court the powers to resolve on aspects not raised in the claims, exceptions and controversial writings of the parties, is striking. it is the usual thing in all legal systems, as long as certain rules are observed: that the new aspects appreciated by the Court are consistent or are closely related to the claims originally deduced; that the new aspects appreciated by the Court are within the scope of its jurisdiction; and that before passing judgment, the Court instructs the parties of the new aspects that it appreciates,granting them a period of no more than six days to make their claims and propose the evidence they deem appropriate for their rights.
These prescriptions are not inestimable due to the complexity of environmental damage and will help our Courts to be true standards in protecting the environment.
Conclusions
In this first approach to the issue of civil liability derived from damage to the environment, we were able to reach several important conclusions:
1. Although civil legal responsibility is an institution that is fairly well treated in the Cuban civil order, it is no less true that it needs an adjustment when it is called to be configured to achieve compensation for environmental damage, especially since Law No. 81 / 97, containing the specific regulation of this matter is not enough and the applicable regulations of the Civil Code are not adapted to the real requirements of this type of damage, which is already a problem for all humanity.
2. Environmental damage is, in itself, a complex and multifaceted element that affects all spheres of society and ultimately involves each of its subjects, which is another reason for the reform of the figure of civil legal liability associated with it.
3. It is difficult on numerous occasions to prove the existence of the causal link between the perpetrator of the damage and the victim when it is inferred to the environment, which forces to seek other non-traditional solutions due to the legislative insufficiency that operates in the Cuban legal framework, such as the recognition of the theory of probabilities or the use of presumptions of causality, which lead to adequate compensation for this type of damage, specifying the restriction of the current exemptions regime of civil legal liability, providing it with a new scope.
4. A basically objective liability system should be used in the repair of environmental damage, such as the one clearly pointed out by our current Civil Code in the case of activities that generate risk, since it is precisely the 'idea of risk' which results in both prevention and compensation for this kind of damage.
5. Although the economic jurisdiction prevails to resolve the majority of environmental conflicts as set out in Decree-Law No. 223/01, taking into account the condition of the persons referred to there, who are the most likely to cause this type of damage Due to the nature of the activities they carry out, this does not prevent the applicable jurisdiction from being determined in each case, considering the limits that the Decree-Law itself supposes.
6. In the determination of the taxpayers or liable parties lies another of the vicissitudes in the matter of the repair of damages to the environment, especially because sometimes they are impossible to fix according to the customary rules, and other variants such as the channeling system, or the use of joint compensation funds as a collective liability mechanism. However, when defining who is entitled to claim compensation for environmental damage, our Law No. 81/97 is very clear and direct.
7. The common mechanisms for repairing damage need to be reviewed when they are caused to the environment, since they are narrow given the conceptual and practical magnitude of the latter.
It is very useful at the present time to configure other reparative variants such as civil liability insurance for environmental damage, not yet implemented in our country, and the use of joint compensation funds by virtue of its de facto viability and its guarantor function.
